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A balancing act: dignity of risk vs. duty of care


Supporting the consumer’s right to make decisions and take risks while balancing duty of care has been an ongoing issue for providers. Managing both effectively requires honest and open communication, policy processes and thorough documentation, a recent conference has heard.

At last weeks’ Aged and Community Services NSW & ACT 2016 state conference, a panel of providers and experts discussed the challenges providers could face in facilitating consumers’ decisions and valuing their rights to exercise control and take risks, while fulfilling their own responsibilities and avoiding complaints or compliance action.

Risks could often exist in residents’ decisions across a variety of settings, such as food choices, activities or in the refusal of recommended clinical care.

However, Rodney Jilek, executive director of care services at St Elizabeth Home, said too often providers thought about duty of care as wrapping ‘the person up in cotton wool’.

Duty of care meant having systems in place to limit risks, but providers still had to acknowledge resident’s human right to decision-making and honour their choices, he said.

“They’re able to make decisions. They may not be the decisions that we would make or that we agree with, but… we have to learn to respect those decisions,” he said.

Home Care Today manager Ronda Held said providers needed to reframe the way they thought about risk – instead of thinking about how they could avoid it, they should think about how they could support someone to do what they wanted to do safely.

Ms Held said it was important consumers received clear information about the potential risks of the their decisions, had opportunities to involve other people in the decision-making process and were offered reablement support.

Communication and documentation are key

Uniting CEO Steve Teulan said providers needed to recognise that a resident’s right to choice and control was paramount. However, it was also important that providers had a framework in place to deal with risk as it arose.

In particular, Mr Teulan said providers needed to assess a resident’s capacity, make sure that the nature of the risk and its implications were understood, and engage with other stakeholders about the decision, such as family, GPs and other health professionals.

Mr Teulan said even if staff knew family members wouldn’t approve of a resident’s decision, it was “all the more reason” to engage with them from the outset, so that in case things did go wrong, they felt they had been adequately consulted.

Further, across all of these processes, he stressed the importance of documentation.

Dr Jilek similarly said communication and documentation were vital. “I think that’s the key, to have it very clearly documented that you’ve gone through the risks, and the resident understands the risks, and has made the choice regardless,” he said.

Mitigating risk

Karen Abbey, Church Resources foodservices ambassador, said risk mitigation strategies could help facilitate residents wishes safely. For example, if a resident declined a recommended move to a diet of thickened fluids, staff could support the resident to continue to eat normal food by supervising them when they ate, and regularly monitor them to ensure they weren’t getting extra chest infections.

Mr Teulan said providers should sit down and identify potential avenues to mitigate risk, and set up processes in case of emergency.

“It might be if someone can’t swallow, do you have suction available? Whatever it happens to be. But you know that you’re actually prepared for the type of risk which you’re going to incur,” he said.

It was also important to support staff by putting policies in place, and having escalation process when things became difficult, said Mr Teulen. Further, providers should learn from mistakes when they occurred, he said.

Partner with Holman Webb Lawyers, Alison Choy Flannigan, said providers could risk negligence if they lacked proper processes to deal with risk. It was important providers documented, had procedures in place, clearly communicated with all involved, and kept up with industry standards.

“What I want to stress is, look at what the guidelines are. Make sure that you comply with them in terms of putting risk strategies forward. Then make sure that you document it,” she said.

However, Mr Teulan emphasised that the biggest obstacle to a resident’s ability to take risks was often providers rather than regulators, and so organisations needed to reflect on practice and create environments that allowed freedom and autonomy.

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6 Responses to A balancing act: dignity of risk vs. duty of care

  1. Dr Rosina Vogels May 11, 2016 at 2:02 pm #

    With respect to the comment regarding thickened fluids as ordered by the speech pathologist and staff supervising etc these strategies are in place anyway
    The questions here is-should the resident choke and die what is the legal outcome and how does the provider stand?

    Even with procedures in place when an adverse event occurs the provider is culpable..

  2. Sonja Bernhardt OAM May 11, 2016 at 3:00 pm #

    Agreed – Risk Management with suitable mitigation strategies IS VIP – however should also be part of an overall governance approach and integrated with an organisations daily operations. Not an add on, nor a simple spreadsheet capturing the risks – instead it ought to be about embedding risk management practices, policies and procedures and making it part of your culture is key.

    Addressing ISO3100 doesn’t have to ‘steal’ time away from care, with a suitable digital system it can give you more time for enhanced care outcomes.

  3. Allison May 11, 2016 at 7:46 pm #

    I agree that residents have the right to take risk. Put yourself in their shoes and ask yourself how would you react? I personally would fight tooth and nail! Too many ‘other’ people try to decide for them because ‘they’ think they know what’s best. We are all experts…but only of our own life.

  4. Lyn Lucas May 18, 2016 at 9:26 am #

    While acknowledging the risk management for organisations, I believe these situations could be resolved with Elder Mediation. A meeting with family members and relevant staff to discuss the wishes of the older person, and how this can be achieved, with a focus on the older person, and with a written agreement signed by all parties, would go a long way in resolving issues with all concerned. Elder Mediation is practiced widely in the USA, Canada and the UK to resolve all manner of issues, but to date we have been slow to realise the advantages.

  5. Dr Callum Detain January 23, 2018 at 10:45 pm #

    I have studied and interacted with the RCH’s and residents. I have learnt that its the resident’s home. Why shouldn’t they be allowed to walk down the corridor naked? They are at home while the carers and staff around are guests who get paid to manage them in a professional manner. The staff are their to advise them and to keep them in touch with their rights, while insuring the safety of others.

  6. gurpreet kaur August 12, 2018 at 12:27 pm #

    Thankyou

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